Court of Appeals Division III 

State of Washington
Opinion Information Sheet


Docket Number: 27292-3
Title of Case: State of Washington v. Pavel Danilovitch Grib
File Date: 10/27/2009


SOURCE OF APPEAL
----------------
Appeal from Grant Superior Court
Docket No: 07-1-00473-7
Judgment or order under review
Date filed: 06/17/2008
Judge signing: Honorable Ken L Jorgensen


JUDGES
------
Authored by John A. Schultheis
Concurring: Stephen M. Brown
Teresa C. Kulik


COUNSEL OF RECORD
-----------------

Counsel for Appellant(s)
David L. Donnan
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA, 98101-3635

Nancy P Collins
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA, 98101-3635

Counsel for Respondent(s)
Albert H Lin
Grant County Prosecutors Office
Law & Justice Center
Po Box 37
Ephrata, WA, 98823-0037



IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, No. 27292-3-III
)
Respondent, )
) Division Three
v. )
)
PAVEL DANILOVITCH GRIB, )
) PUBLISHED OPINION
Appellant. )
)

Schultheis, C.J. -- Police in Grant County received a report that a vehicle

matching the description of Pavel Grib's car was driving erratically. Officers located Mr.

Grib's vehicle and attempted to stop him. He led them on a chase that ended when he

jumped out of his car and into an irrigation canal and swam to the other side where police

ultimately intercepted and arrested him. At the police station, he attempted to gain

control of an officer's taser and bit an officer's leg. Methamphetamine was found in the

car, which was searched after Mr. Grib was secured on the other side of the canal. Mr.

Grib was convicted of attempting to elude a pursuing police vehicle, possession of

methamphetamine, assault in the third degree, disarming a police or jail officer, resisting

No. 27292-3-III
State v. Grib

arrest, and driving under the influence (DUI).

On appeal, he contends that the trial court erred when it denied his motion to

suppress the methamphetamine, arguing that he was secured and not in the area of his car

when the search took place. We agree. Arizona v. Gant, ___ U.S. ____, 129 S. Ct. 1710,

173 L. Ed. 2d 485 (2009). We therefore reverse the possession conviction as well as the

DUI conviction, which was tainted by the erroneously admitted methamphetamine

evidence, and remand.

FACTS

On July 27, 2007 at about 9 p.m., Jason Todd heard a loud noise in the front yard

of his rural Grant County home near Soap Lake, Washington. When he went to

investigate, he found a car parked in his flower bed. He approached the driver, Mr. Grib,

who said in a thick Russian accent that he thought he had passed out. Mr. Todd, an

EMT, thought Mr. Grib might be under the influence of drugs or alcohol. Mr. Todd

asked Mr. Grib to get out of the car but he refused and drove off, weaving, parking for a

short time, and then driving off again. Concerned about Mr. Grib's driving, Mr. Todd

called 911 and gave the operator Mr. Grib's license plate number.

Grant County Deputy Sheriff Earl Romig was dispatched to search for Mr. Grib's

car. When he spotted a car on a gravel road that matched the description, Deputy Romig

yelled at Mr. Grib. Mr. Grib shouted back that he had done nothing wrong and he was

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No. 27292-3-III
State v. Grib

not going to stop. Mr. Grib appeared agitated. The deputy suspected that Mr. Grib was

driving under the influence.

A Soap Lake police patrol car pulled behind Mr. Grib's car with its lights on. The

officers got out of their car while Mr. Grib continued to drive forward, yelling at them.

He then quickly accelerated to 50 m.p.h. on the gravel road, spraying dust and gravel.

The law enforcement officers returned to their vehicles and gave chase with lights and

sirens.

Mr. Grib eventually jumped out of his car, leaving it in gear, and swam across the

strong current of the 60-foot wide canal. Deputy Romig quickly got out of his patrol car

and stopped Mr. Grib's car, put it in park, and removed the keys from the ignition.

After climbing out of the water on the other side of the canal, Mr. Grib yelled

across that he had done nothing wrong and that he would fight anyone who came over to

his side of the canal. When a deputy approached and ordered Mr. Grib to the ground,

Mr. Grib advanced with his chest puffed out, his fists clenched, and his arms flailing.

The deputy knocked Mr. Grib to the ground by deploying a taser. Mr. Grib continued to

struggle and fight while being handcuffed. The deputy again used the taser, allowing law

enforcement officers to take Mr. Grib into custody. Mr. Grib told the officers he had a

knife in his pocket, which the officers seized. The officers deemed Mr. Grib too

combative to allow them to administer the standard DUI tests. Once Mr. Grib was

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No. 27292-3-III
State v. Grib

secured, Deputy Romig searched Mr. Grib's car on the other side of the canal and found

1.8 grams of methamphetamine in the glove box.

On the ride to jail, Mr. Grib continued to be very aggressive and defiant,

threatening to attack an officer. He struggled with correctional officers, grabbed an

officer's taser, and then bit the officer on the leg as they wrestled on the floor.

Mr. Grib was charged with two counts of resisting arrest and one count of

attempting to elude a pursuing police vehicle, possession of methamphetamine, assault in

the third degree, disarming a police or jail officer, unlawful possession of a dangerous

weapon, DUI, and bail jumping.

After a jury trial, Mr. Grib was found not guilty of unlawful possession of a

weapon and bail jumping. He was found guilty of the lesser offense of attempt to disarm

a police or jail officer and guilty of the remaining offenses.

DISCUSSION

Warrantless searches and seizures may be permitted within the limitations of "'a

few specifically established and well-delineated exceptions'" to the warrant requirements

of the Fourth Amendment to the United States Constitution and Washington Constitution

article I, section 7. State v. Chrisman, 100 Wn.2d 814, 817, 676 P.2d 419 (1984)

(quoting Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576

(1967)). These exceptions are "'jealously and carefully drawn'" and the "burden rests

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No. 27292-3-III
State v. Grib

with the State to prove the presence of one." State v. Hendrickson, 129 Wn.2d 61, 72,

71, 917 P.2d 563 (1996) (internal quotation marks omitted) (quoting State v. Bradley, 105

Wn.2d 898, 902, 719 P.2d 546 (1986) (citing Coolidge v. New Hampshire, 403 U.S. 443,

454, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971))). A search incident to a lawful arrest is

such an exception. State v. Johnson, 128 Wn.2d 431, 447, 909 P.2d 293 (1996).

Mr. Grib contends that the court erred by denying his motion to suppress evidence,

which the trial court justified as being incident to a lawful arrest. A trial court's

conclusions of law in a suppression order are reviewed de novo. State v. Evans, 159

Wn.2d 402, 406, 150 P.3d 105 (2007).

The trial court found that while Mr. Grib was being arrested, Deputy Romig

secured Mr. Grib's car, which had been left in gear, put the car in park, and removed the

keys. Deputy Romig later searched Mr. Grib's car incident to arrest and found

methamphetamine in the unlocked glove compartment. The trial court concluded that

"[t]he unlocked glove compartment where the methamphetamine was discovered is within

the area of control of the defendant arrested outside the car." Clerk's Papers (CP) at 173

(Conclusion of Law 3.2). Thus, "[t]he search of the unlocked glove compartment

incident to arrest is therefore permissible." CP at 173 (Conclusion of Law 3.3).

Relying on Arizona v. Gant, 129 S. Ct. 1710, Mr. Grib asserts that the search was

unlawful. In Gant, the United States Supreme Court narrowed the circumstances in

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No. 27292-3-III
State v. Grib

which a vehicle may be searched incident to its occupant's arrest: "[W]e . . . hold that the

Chimel [v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969)] rationale

authorizes police to search a vehicle incident to a recent occupant's arrest only when the

arrestee is unsecured and within reaching distance of the passenger compartment at the
time of the search."1 Gant, 129 S. Ct. at 1719 (emphasis added).

Mr. Grib convincingly argues, and the record shows, that he was a considerable

distance from his car when it was searched and the canal presented a significant obstacle

to his access to the passenger compartment of his car. Furthermore, Mr. Grib was tased

and handcuffed. It cannot be claimed that Mr. Grib was unsecured or within reaching

distance. The search is not valid under the justification found by the trial court.

The State argues that the search of Mr. Grib's vehicle was valid pursuant to the

community caretaking doctrine in which a vehicle may be impounded if there is a threat

to public safety or impeded traffic and no one is available to remove the vehicle. The

State relies on State v. Ferguson, 131 Wn. App. 694, 702, 128 P.3d 1271 (2006).

Ferguson can be easily distinguished because it involved the towing of a car that was

1 The Court also held that it would be acceptable for officers to search an
arrestee's vehicle related to the arrested offense. Gant, 129 S. Ct. at 1719 ("[W]e also
conclude that circumstances unique to the vehicle context justify a search incident to
lawful arrest when it is 'reasonable to believe evidence relevant to the crime of arrest
might be found in the vehicle.'" (quoting Thornton v. United States, 541 U.S. 615, 632,
124 S. Ct. 2127, 158 L. Ed. 2d 905 (2004) (Scalia, J., concurring in judgment))).
Because this rationale was not used to justify the search, we do not address it here.

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No. 27292-3-III
State v. Grib

suspected to contain an operating methamphetamine lab. Moreover, the trial court in

Ferguson justified the search on that basis. The trial court here did not.

The trial court erred by concluding that the search was justified as the car was

within Mr. Grib's control at the time of arrest. Any evidence discovered as a result of the

search should have been excluded as fruit of the poisonous tree. Wong Sun v. United

States, 371 U.S. 471, 484, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). Because the

methamphetamine evidence involved his drug possession charge as well as the DUI, both

charges must be reversed.

We reverse the convictions for possession of a controlled substance

(methamphetamine) and DUI, and we remand for further proceedings consistent with this

opinion.

___________________________________
Schultheis, C.J.

WE CONCUR:

___________________________________
Brown, J.

___________________________________
Kulik, J.

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